Bankruptcy and Diligence etc. (Scotland) Act 2007

Part 3 SEnforcement

Scottish Civil Enforcement CommissionS

50Scottish Civil Enforcement CommissionS

(1)There is established a body corporate to be known as the Scottish Civil Enforcement Commission (in this Act, the “Commission”) having the functions conferred on it by virtue of this Act and any other enactment.

(2)The Commission must, in the exercise of its functions, act—

(a)in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements; and

(b)in accordance with any directions given to it by the Scottish Ministers.

(3)In subsection (2)(a) above, “equal opportunities” and “equal opportunity requirements” have the same meanings as in Section L2 of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).

(4)The Scottish Ministers may, by regulations—

(a)confer functions on;

(b)remove functions from; or

(c)otherwise modify the functions of,

the Commission.

(5)Regulations made under subsection (4) above may—

(a)transfer a function to the Commission which is conferred on another person by virtue of any other enactment; and

(b)make such modifications to any other enactment which the Scottish Ministers consider necessary or expedient in consequence of transferring the function.

(6)The Advisory Council on Messengers-at-Arms and Sheriff Officers is abolished.

(7)Schedule 2 to this Act makes further provision about the Commission.

Judicial officersS

58Appointment of judicial officerS

(1)Where the Commission is satisfied—

(a)that a person who applies to it is a fit and proper person to be appointed as a judicial officer; and

(b)having regard to—

(i)the number of persons already holding commission as officers; and

(ii)any other matters the Commission considers relevant,

that the appointment is appropriate,

the Commission must, subject to section 63(3) of this Act, recommend that the Lord President of the Court of Session grants that person a commission as an officer.

(2)The Commission must send a copy of its decision on an application for a commission as a judicial officer to the person who applied for the commission.

(3)Where the Lord President grants a person a commission as a judicial officer under section 57(2) of this Act, the Commission must issue an official identity card, in a form determined by the Commission, to the officer.

(4)A judicial officer carrying out an officer's functions must, on being requested to do so, exhibit the official identity card issued under subsection (3) above.

(5)The Commission may make rules about—

(a)the procedure for applications for a commission as a judicial officer;

(b)the qualifications that a person must have before that person may be granted a commission under section 57(2) of this Act;

(c)the examinations that a person may be required to undertake in pursuance of a qualification prescribed by rules made under paragraph (b) above;

(d)the training that a person must undertake before that person may be granted a commission; and

(e)any other matters in relation to applications as it considers appropriate.

Regulation of judicial officersS

61Regulation of judicial officersS

(1)The Scottish Ministers may, by regulations—

(a)confer functions on;

(b)remove functions from; or

(c)otherwise modify the functions of,

judicial officers.

(2)The Scottish Ministers may, by regulations—

(a)prescribe the types of business association which judicial officers may form in order to carry out their functions;

(b)make provision about the ownership, membership, management and control of those business associations;

(c)prescribe conditions which must be satisfied by those business associations;

(d)make provision regulating the fees and charges which may be levied by an officer in the performance of the officer's functions.

(3)Before making regulations under subsection (1) or (2) above, the Scottish Ministers must consult the Commission.

(4)The Commission may make rules—

(a)regulating, without prejudice to sections 67 to 73 of this Act, the conduct of judicial officers;

(b)prohibiting the undertaking by officers of activities which appear to the Commission to be incompatible with their functions;

(c)permitting, subject to any conditions the Commission provides for in the rules, the undertaking by officers for remuneration of activities, not appearing to the Commission to be incompatible with their functions;

(d)which make provision—

(i)about the accounts and finances of officers, including the keeping and auditing of officers' accounts;

(ii)for the keeping of records by officers and the inspection of those records; and

(iii)about the finding of caution by officers; and

(e)regulating other matters in relation to officers that the Commission considers appropriate.

(5)A judicial officer must not undertake any activity which is not connected with the officer's functions for remuneration unless the officer obtains the permission of the Commission.

(6)The Commission must not withhold permission under subsection (5) above unless it appears to the Commission that the undertaking by the judicial officer of the activity would be incompatible with the officer's functions.

(7)The Commission may—

(a)attach conditions to; or

(b)revoke,

any permission granted under subsection (5) above.

Judicial officers' professional associationS

63Judicial officers' professional associationS

(1)The Scottish Ministers, by regulations—

(a)must designate an association as the professional association for judicial officers; and

(b)may make provision in relation to the functions, constitution and procedures of the professional association.

(2)The Scottish Ministers may not make regulations under subsection (1) above without first consulting—

(a)the Commission;

(b)representatives of the professional association or, as the case may be, proposed professional association; and

(c)such other bodies or persons who appear to the Scottish Ministers to have an interest.

(3)A person may not hold a commission as a judicial officer unless that person is a member of the professional association.

MiscellaneousS

75Judicial officer's actions void where officer has interestS

(1)Anything done by a judicial officer in exercising or purporting to exercise a prescribed function in relation to a matter in which the officer has an interest is void.

(2)A judicial officer has an interest in a matter where the matter—

(a)is one in which the officer has an interest as an individual; or

(b)consists of or includes a debt in relation to which any of the circumstances mentioned in subsection (3) below apply.

(3)The circumstances referred to in subsection (2)(b) above are that the debt is due to or by—

(a)a business associate of the judicial officer;

(b)a member of the officer's family; or

(c)a company or firm, and the officer, a business associate of the officer or a member of the officer's family—

(i)is a director or partner of that company or firm;

(ii)holds, either alone or along with an other person, a controlling interest in that company or firm; or

(iii)has a pecuniary interest in that company or firm and the sole or main business of the company or firm is the purchase of debts for enforcement.

(4)Any reference in subsection (3) above to—

(a)a business associate of a judicial officer is to be construed as a reference to a co-director, partner, employer, employee, agent or principal of the officer;

(b)a controlling interest in a company is to be construed as a reference to an interest giving a person control of a company within the meaning of section 840 of the Income and Corporation Taxes Act 1988 (c. 1) (meaning of “control”).

(5)Any reference in subsection (3) above to a member of a judicial officer's family is to be construed as a reference to—

(a)the spouse of the officer;

(b)a person living together with the officer as husband and wife;

(c)a civil partner of the officer;

(d)a person living with the officer in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the officer are of the same sex;

(e)a parent of the officer;

(f)a brother or sister of the officer;

(g)a child of the officer, including—

(i)a stepchild; and

(ii)any child brought up or treated by the officer or any person mentioned in paragraph (b), (c) or (d) above as a child of the officer or, as the case may be, of that person;

(h)a grandchild of the officer,

and any relationships of the half blood or by affinity are to be construed as relationships of the full blood.

(6)In subsection (4)(a) above, “principal” does not include a principal in a contract for the carrying out by the judicial officer of the prescribed function in relation to the debt concerned.

(7)In subsections (1) and (6) above, “prescribed function” means any function conferred on a judicial officer by virtue of this Act or any other enactment which the Scottish Ministers by regulations specify for the purposes of this section.